Resolving the Kashmir issue - I
13 March 2006
The Daily Times
By Dr Mubashir Hasan
Islamabad: While the sincerity of the concerned parties in the Kashmir dispute is not in doubt, the long term prospects of peace and security of a Kashmir that may emerge from ongoing negotiations are * Since the division of former State of Jammu and Kashmir is not acceptable either to India, Pakistan or to the people of the former state, India and Pakistan should agree that the former state shall reunite as a single entity. This agreement shall fulfil one of the basic nationalist aspirations of the people of the former state * For eliminating any chance of conflict between Pakistan and India, it would be necessary that – except for the defence of the border against China – the two countries shall not station any troops on the soils the Kashmir. In so agreeing the need for defending the LoC along 800 km ceases to exist and the way will be cleared for the withdrawal of Pakistani and Indian forces Pakistan, India and political leaders in various parts of the former State of Jammu and Kashmir are deeply engaged in finding an agreed solution of the Kashmir issue. It is a noble cause in pursuit of peace and prosperity in the subcontinent. On several counts, the so called ‘Kashmir issue’ is one of the most difficult of political issues to resolve. Considering its complexity and delicacy, the governments of Pakistan and India and the leaders of various political opinions in the former state deserve to be complimented on perseverance and restraint they have shown so far in dealing with each other, which is an achievement not seen except in the recent past. The sincerity of all concerned with the issue is not in any doubt. In doubt, however, are the long term prospects of peace and security of an autonomous or semi-autonomous Kashmir, as it might emerge, as a result of the ongoing negotiations. The more I meet Kashmiri leaders and listen to the views of the governments of India and Pakistan, the more convinced I get that no amount of consensus achieved by those presently involved in the peace process can give satisfactory long term results unless the malaise that afflicts the polities of the entire subcontinent is diagnosed and addressed. The three contending parties should look deeper in the mode-process of governance during the colonial and post-colonial periods. Our assumption that there was little wrong with the Raj except the presence of foreigners at the helm of affairs proved wrong. The gora sahib is gone but the overwhelming majority of our populations continue to suffer from many of the ills of the Raj – malnutrition, ignorance, ill health etc – and from a feeling of alienation from the state. Our urge to win independence from imperial political and economic domination of the British was justified on all counts. The British yoke had to be cast away. It was a great struggle on all counts. Apart from being a struggle for national self-determination, it was also a struggle against the oppressive structure of governance. The more the British used their system to oppress the political struggle the more fuel it provided to the fire of independence blazing in the heart of Indians. The structure the British had devised in the mid-18th century had turned counterproductive for the rulers by the end of that century. The British Indian subjects were no longer happy and started resisting it on a larger and larger scale. Our history is witness that transfer of sovereign power at the highest level is a necessary but not a sufficient condition to usher an era of peace and prosperity. India and Pakistan won independence in 1947. Bangladesh seceded from Pakistan in 1971. The provinces of Pakistan agreed to a new constitution dispensation for the country in 1973. All these were events of monumental importance but they fell short of achieving the major goal for which the great leaders had worked. The promised era of peace and prosperity did not dawn for the overwhelming majority of the population for these countries. What then is the lesson of history for us? When major decisions involving even small changes in the sovereign status of a land are taken, the conditions of governing and regulating the daily lives of common man must be kept in view to assure the protection of life, property and human rights, a transparent system of justice and equality of opportunity for all. The Kashmir issue: What is the broad direction the governments of Pakistan and India and the peoples of the former State of Jammu and Kashmir want to take in resolving the so-called Kashmir issue. It is natural that the three contending parties should want more in real terms than what they have now. Should that be feasible it would be a win, win, win solution for all - a win each for Pakistan and India and a win for the people of the former State of Jammu and Kashmir. Pakistan’s position: Setting aside its past stand, Pakistan has taken the position that any solution of the dispute-issue which is acceptable to the people of the former state is acceptable to Pakistan provided it does not amount to either full independence or the division of the state along the line of control. Pakistan no longer insists on the enforcement of those parts of the resolutions of the United Nations which would have resulted in the entire state either acceding to Pakistan or India. Since Pakistan considers the former State of Jammu and Kashmir as a disputed territory, it does not claim sovereignty over any area of the state. The area, Pakistan calls Azad Kashmir has its own president, parliament, prime minister, supreme court, high court and other institutions. It has wide internal autonomy. On behalf of the government of Azad Kashmir, Islamabad is responsible for the defence, foreign affairs and immigration questions pertaining to the area and through those rights much more. In such a situation, if a solution can be found which gives Pakistan certain status in the territory now under India’s control and makes legal certain aspects of its authority in the areas lying to the east of the Line of Control, it would be a net gain for Pakistan. India’s position: India claims sovereignty over the entire territory of the former state. However, along with the government of Azad Kashmir, Pakistan exercises control over certain areas of the former state which lie to the west and north of the LoC. It is generally believed, that should Pakistan and Azad Kashmir agree, India would accept the LoC, with minor changes, as international border, that is, India would be willing to relinquish its sovereign claim over what is with Pakistan and Azad Kashmir as of now. Such a solution is not acceptable either to most of the people of the former state or to Pakistan. It is also a fact that New Delhi ceded parts of India’s sovereignty to the state legislature in Srinagar under Article 370 of the Constitution of India, retaining, however, for the President of India the power to declare this article inoperative fully or partially. It is generally believed that India is prepared to enhance the autonomous status of the former State as long as it does not amount to independence. Prime Minister Narasimha Rao of India declared in 1995 “Independence no, autonomy, sky is the limit”. The declaration has since been reaffirmed by India’s minister of external affairs. In such a situation, if a solution can be found which gives India certain status in the territory now under Pakistan’s control, in lieu of conceding wide autonomy to the state as well as giving Pakistan certain status in the part of the state now under India’s control, it would be a net gain for India. Kashmiris’ position: Apparently, people in large numbers in the former State of Jammu and Kashmir do not wish to be ruled either by India or Pakistan. They would like to be independent. However, neither India nor Pakistan is ready to consider this option as a solution to the dispute. The opinion in the international community also does not seem to favour the emergence of a new independent state in the region. For the time being, those who are for complete independence may consider fulfilling their aspirations to the extent of widest possible autonomy. That will be, indeed, a big change in their favour from their present status. Major questions: The resolution of the Kashmir issue requires solution of two major questions: 1. The extent of sovereignty which India and Pakistan are willing to cede to the people of the former state, in other words, the extent of sovereign power to be retained by Pakistan and India in the new dispensation of the former state. 2. Arrangements of governance within the state after the emergence of the new polity in the boundaries of the former state. The question of autonomy: The extent of sovereignty which India and Pakistan are willing to cede to people of the former state shall determine the extent of sovereign power they will retain in the new dispensation of the former state, provided the irrevocability of the power so ceded is guaranteed by the three parties and also finds international endorsement of the United Nations when the dispute is taken off from the agenda of the Security Council. The governments of Pakistan and India on reaching an agreement amongst them and with the perceived political leadership should put their proposal about the quantum of autonomy for approval the people of the former State of Jammu and Kashmir through a referendum. Since the division of the state is not acceptable either to India, Pakistan or to the people of the former state, India and Pakistan should agree that the former state shall reunite as a single entity. This agreement shall fulfil one of the basic nationalist aspirations of the people of the former state. Defence: The authority to defend a territory with armed forces is one of the basic tenets of the exercise of sovereignty. Neither India nor Pakistan would be ready to relinquish the responsibility of the defence of the border of the former State of Jammu and Kashmir with China. It would be prudent for the people of Kashmir to let Pakistan and India continue to be responsible for the defence of the borders of the former state with China. As a result, India’s de- facto authority as it exercises today along the Ladakh border becomes de-jure in the eyes of the United Nations. Pakistan does the same along the Khunjrab border in a legally recognised manner. If they wish they may form a consultative body with the government of the state on matters relating to the movement, supplies, logistics etc for their defence forces which will guard the border. For eliminating any chance of conflict between the armies of Pakistan and India, it would be necessary that, except for the defence of the border against China, India and Pakistan shall not station any troops on the soils the former State of Kashmir. Even more prudent will be a treaty between India and Pakistan that the two countries shall not prepare for or wage war in the territory of the former state. In so agreeing the need for defending the LoC along almost 800 kilometres ceases to exist and the way will be cleared for the withdrawal of their forces stationed along this line. Aid to civil power: If the military and paramilitary forces of India and Pakistan are to be withdrawn from the state, the vital question of coming to the aid of civil power to deal with serious internal civil disorder arises. No country can afford so huge a police force in every part of the state as to be able to pacify large scale civil disorder. Further, certain types of strives are more easily controlled by units which cannot be stigmatised for partiality. Accordingly, any resolution of the Kashmir issue shall require bringing into being, under the new dispensation of the state, organised armed units to come to the aid of civil power as and when required. No longer required then will be the armies of Pakistan and India to come to the aid of civil power in the former state. In order to prevent any possibility of an armed conflict between the forces of Kashmir and those of India, the newly emerged State of Jammu and Kashmir should pledge not to build an army of its own. This shall save the state huge burden of defence expenditure. The arrangements described heretofore shall strengthen the internal autonomy of the administration of the state much to the relief of the armies of India and Pakistan. Foreign relations: Another basic tenet of the exercise of sovereign power is the authority to conduct relations with foreign powers. These may range from declaration of war, signing of peace treaty, entering into alliances of defence, incurring debts or establishing credits with foreign powers, committing the state into international agreements and covenants and hundreds of other matters including the crucial questions of trade and economic relations. At present the foreign relations of a part of the former state are conducted by Pakistan and of the other part by India. It is most unlikely that either India or Pakistan will be ready to cede to the State of Jammu and Kashmir their authority to conduct foreign relations on questions which affect the high security interests of either country. The ceding of authority on matters of trade and commerce in line with the policies of either Pakistan or India can be another matter. A possible solution to this difficult issue can be that India and Pakistan may jointly be responsible for matters they consider crucial to their vital interests.